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Case 3:06-cv-00112 Document 59 Filed in TXSD on 10/24/08 Page 1 of 26 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION DAVID L. HOWELL, § TDCJ #733929, § § Plaintiff, § § v. § CIVIL ACTION NO. G-06-0112 § NATHANIEL QUARTERMAN, et al., § § Defendants. § MEMORANDUM AND ORDER State inmate David L. Howell (TDCJ #733929) has filed this lawsuit under 42 U.S.C. § 1983, alleging violations of his civil rights. He proceeds pro se and he has been granted leave to proceed in forma pauperis. At the Court’s request, Howell has provided an amended version of his complaint. (Doc. # 16). The defendants have filed separate motions for summary judgment. (Docs. # 50, # 51). Howell has filed a response. (Doc. # 57). After reviewing all of the pleadings, and the applicable law, the Court grants summary judgment in favor of the defendants and dismisses this case for reasons that follow.1 I. BACKGROUND Howell is currently in custody of the Texas Department of Criminal Justice - Correctional Institutions Division (collectively, “TDCJ”). Howell’s complaint primarily concerns the level of care that he received at the at the Ramsey I Unit in Rosharon, Texas, 1 On October 25, 2007, this case was reassigned to United States District Judge Melinda Harmon pursuant to General Order 2007-10. The case is being handled by the undersigned by agreement of the judges. Case 3:06-cv-00112 Document 59 Filed in TXSD on 10/24/08 Page 2 of 26 where Howell was formerly assigned.2 Howell sues several TDCJ employees assigned to the Ramsey I Unit facility, including: Director Nathaniel Quarterman, Senior Warden Curtis McKnight, Assistant Warden Kelvin Scott, Assistant Warden D. Turrubiarte, Disciplinary Captain M. Kitchens, Counsel Substitute Patricia Weaver, Lieutenant Delores Tarver, Lieutenant Dan Lewis, Lieutenant Stacy Mickens, Property Officer Stacy Hecht, Correctional Officer Valeri Powell, Dr. Natascha Dumas, Psychological Counselor Billy Stone, and Nurse Manager Patricia Garrison. Howell explains that he had surgery in 1986 and 1997, to remove “numerous hemorrhoids.”3 Howell claims that he was examined by a specialist at the John Sealy Hospital in 2001, where he was warned that additional surgery could render him incontinent. As an alternative to surgery, Howell states that the examining physician prescribed a regimen of self-care to control and treat his hemorrhoids. According to Howell, the surgeon who 2 Since filing this suit, Howell has been transferred to the Wayne Scott Unit in Angleton, Texas. (Doc. # 58). 3 Hemorrhoids are “[a] varicose condition of the external hemorrhoidal veins,” which supply blood to the rectum, “causing painful swelling at the anus.” STEDMAN’S MEDICAL DICTIONARY 806 (27th ed. 2000). This condition, which can be external or internal, can cause “bleeding and painful swelling in the anal canal.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 853 (31st ed. 2007). 2 Case 3:06-cv-00112 Document 59 Filed in TXSD on 10/24/08 Page 3 of 26 examined him in 2001 “ordered” him to use a sitz bath,4 among other things, to alleviate his condition. Howell complains that, until 2003, he had access to a sitz bath in his cell. Thereafter, Howell was instructed to take sitz baths in the prison medical department or, when the infirmary was closed, to take additional showers as needed. Because he no longer has access to an in-cell sitz bath, however, Howell complains his clothing frequently become soiled with blood, which he finds humiliating. Because he is susceptible to infections, Howell claims that he must wash himself immediately after defecation, which reportedly causes him to bleed so much that he must clean blood from the toilet and his person. Howell claims that “security staff” do not always afford him with prompt access to the infirmary or to a shower. As a result, Howell alleges that his condition causes him to suffer physical and psychological pain, bleeding, and humiliation. Howell claims, therefore, that he needs to have a sitz bath in his cell. Because he has been denied a sitz bath in his cell, Howell complains that the defendants have denied him adequate medical care for hemorrhoids, or interfered with prescribed treatment, and that several of the defendants were deliberately indifferent to “suicidal ideations” that he expressed on June 1, 2005. As a result of the grievances that he has filed about his care, Howell also claims that he has experienced retaliation. Howell seeks 4 The defendants provide an affidavit from Registered Nurse Stephen Rogers, who explains that a “sitz bath” is a “tub with a hose that fills with warm water and is used to soothe and cleanse the rectal area.” (Doc. # 50, Appendix at 64). Rogers adds that “[t]he equipment for a sitz bath includes a reservoir for water, a long plastic tube, and a basin similar to a bed pan.” Id. 3 Case 3:06-cv-00112 Document 59 Filed in TXSD on 10/24/08 Page 4 of 26 compensatory and punitive damages from all of the defendants. The defendants have filed two motions for summary judgment, arguing that Howell is not entitled to relief. The parties’ contentions are addressed below under the governing standard of review. II. STANDARD OF REVIEW The complaint in this case is governed by the Prison Litigation Reform Act (the “PLRA”), which mandates the dismissal of a prisoner’s civil rights complaint under the following circumstances. Upon initial screening of a prisoner civil rights complaint, the PLRA requires a district court to scrutinize the claims and dismiss the complaint, in whole or in part, if it determines that the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted;” or “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). A reviewing court may dismiss a complaint for these same reasons “at any time” where a party proceeds in forma pauperis. 28 U.S.C. § 1915(e)(2)(B) (mandating dismissal where the complaint is “frivolous or malicious,” “fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief”). The PLRA also provides that the court “shall on its own motion or on the motion of a party dismiss an action” if it is satisfied that the complaint is “frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.” 42 U.S.C. § 1997e(c). The defendants have filed a motion for summary judgment, arguing that the plaintiff’s claims fail as a matter of law. Rule 56 of the Federal Rules of Civil Procedure mandates the 4 Case 3:06-cv-00112 Document 59 Filed in TXSD on 10/24/08 Page 5 of 26 entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party’s case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322–23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The moving party, however, need not negate the elements of the non-movant’s case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving party may meet its burden by pointing out “‘the absence of evidence supporting the nonmoving party’s case.’” Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)). If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal 5 Case 3:06-cv-00112 Document 59 Filed in TXSD on 10/24/08 Page 6 of 26 citation omitted). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted). In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). However, factual controversies are resolved in favor of the non-movant “only ‘when both parties have submitted evidence of contradictory facts.’” Alexander v.

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